Smith v. Moore

425 S.W.2d 856, 1968 Tex. App. LEXIS 3014
CourtCourt of Appeals of Texas
DecidedFebruary 29, 1968
DocketNo. 14997
StatusPublished
Cited by5 cases

This text of 425 S.W.2d 856 (Smith v. Moore) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Moore, 425 S.W.2d 856, 1968 Tex. App. LEXIS 3014 (Tex. Ct. App. 1968).

Opinions

PEDEN, Justice.

The plaintiffs sought a declaratory judgment holding that certain building and use restrictions embodied in a recorded instrument called the “Agreement Creating Sha-dyside,” and incorporated by reference in the original conveyances of lots in the subdivision, are of permanent or indefinite duration (at least until there is an abandonment or waiver of them or a substantial change of conditions so as to make them unenforceable). Alternatively, they asked that the owners of a majority of the lots be declared authorized to amend, alter or extend the duration of the restrictions. Some of the defendants sought a declaratory judgment holding that the restrictions expire on June 30, 1969. They also sought other relief, as will be set out.

Trial was held without a jury. From a judgment entered for defendants on the points which we have listed, plaintiffs filed their appeal.

We will refer to the parties by their trial court designations. Some of those named as parties defendant did not actively participate in the trial and do not appeal from the judgment; we will henceforth refer only to the active participants when we use the term “defendants”.

Shadyside is a highly exclusive residential subdivision. Montrose Boulevard, South Main Street and Hermann Park border it on the east; Bissonnet Street, the Museum of Fine Arts, the Warwick Hotel and the Mecom Fountain are just north of it, and Rice University adjoins it on the south. The residential areas west of Sha-dyside are separated from it by a 30-foot-wide strip of large plantings. Its interior streets and sidewalks are privately held in trust for the owners of its lots.

Shadyside was developed by Mr. J. S. Cullinan, a business and civic leader, who bought the land from Mr. George Her-mann’s estate in 1916, and donated part of it for the Art Museum and the Sunken Garden (site of the Mecom Fountain). He built his own imposing home in Shadyside. He conveyed almost all of the other lots to friends and to members of his family.

The agreement creating Shadyside was filed for record in the Harris County Clerk’s office on September 29, 1919. Since the decision in this case turns upon its interpretation, we will set it out here; the letters in the left margin have been added for easy reference:

Agreement Creating
SHADYSIDE
(A.) THIS TRUST AGREEMENT AND CONVEYANCE, made at Houston, Texas, as of date July 1, 1919, between J. S. Cullinan, a citizen and resident of Houston, Texas, (hereinafter called Grantor) party of the first part;
(B.) W. W. MOORE, HENRY STUDE and H. A. KIPP, all citizens and residents of Houston, Texas, (hereinafter called Trustees) parties of the second part, and
(C.) CERTAIN BENEFICIARIES, who are now or shall hereafter become parties hereto in the manner herein provided, (hereinafter called Lot Owners) parties of the third part.
(D.) WHEREAS, said Grantor is possessed and seized in fee simple of [858]*858two certain tracts of land, hereafter to be known as SHADYSIDE, situated within corporate limits of the City of Houston, being hereinafter fully described, and which said Grantor has determined shall be subdivided into residence lots, roadways, etc., with characteristics as shown upon the map thereof, copy of which is hereto attached and made part hereof; and being desirous of making provisions for administration of the properties and of creating certain restrictions in regard to the lots therein;
(E.) NOW THEREFORE, in consideration of the premises and of one dollar in hand paid by said Trus tees, receipt of which is hereby acknowledged, and for the further purpose of creating a Trust as hereinafter defined, I, the said Grantor, J. S. Cullinan, have granted, bargained, sold and conveyed, and by these presents do grant, bargain, sell and convey unto the said Trustees above named, and to their successors as such, all as joint tenants and not as tenants in common, as long as this Trust shall endure, subject in all respects to the further terms of this instrument, all and singular the following property, to wit: Two tracts of land situated within the corporate limits of Houston, Harris County, Texas:
(F.) FIRST TRACT: Consisting of about thirty-six (36) acres of the Jos. Gamble Survey, fully described in a deed to said Grantor, recorded in Book 3S9, page 330, of Deed Records of said County;
(G.) SECOND TRACT: One and One-tenth (1.1) acres of the O. Smith Survey, being fully described in a deed to said Grantor, recorded in Book 429, page 485, of the Deed Records of said County; to which deed and the records thereof reference is hereby made for precise description; provided, however, that of said property there is expected from this conveyance and reserved to the Grantor, title to each and all of the twenty-four lots designated by letters upon said map from A to X, both inclusive, but in respect to such lots certain restrictions are provided and shall apply as hereinafter set forth. (There is also excepted from this conveyance the strip of litigated land which, under the terms of Grantors purchase, he became entitled to acquire when hi's grantors shall have established their claim to the same).
(H.) TO HAVE AND TO HOLD, all and singular the above described premises, together with all improvements and appurtenances thereto incident and belonging unto the said Trustees, their successors and assigns, as joint tenants and not as tenants in common, as aforesaid, and to their proper use and behoof so long as this Trust shall endure; all, however, to be so held in trust for the uses, intents, and purposes, and subject to the terms, restrictions, and conditions hereof as follows :
1. This Trust shall endure during the lifetime of the last survivor of the three Trustees named herein, and for twenty-one years thereafter; not, however, to exceed the period ending June 30, 1969.
2. The beneficiaries hereunder are those who now or may hereafter own one or more of the lots in Shadyside, such lots being twenty-four in number, each designated with a letter of the alphabet serially from A to X, both inclusive; and in all things pertaining to this Trust one vote shall be allowed to the owner thereof for each such lot, and in every instance a majority [859]*859of the votes shall prevail. All rights as a beneficiary hereunder shall pass with title and as incident thereto without further acts of any parties.
3. The duties of Trustees shall be to hold title to and administer the properties vested in them, and to keep proper records and accounts of all things pertaining to the Trust.
4. The Trustees severally shall hold their positions as such until their respective successors shall be properly designated and qualified. Vacancies shall be created by death, resignation, or removal of residence from Harris County.

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Bluebook (online)
425 S.W.2d 856, 1968 Tex. App. LEXIS 3014, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-moore-texapp-1968.